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"By Accident of Birth": the Battle Over Birthright Citizenship After United

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“By Accident of Birth”: The Battle over Birthright Citizenship After United States v. Wong Kim Ark Amanda Frost In theory, birthright citizenship has been well established in U.S. law since 1898, when the Supreme Court held in United States v. Wong Kim Ark that all born on U.S. soil are U.S. citizens. The experience of immigrants and their families over the last 120 years tells a different story, however. This article draws on government records documenting the Wong family’s struggle for legal recognition to illuminate the convoluted history of birthright citizenship. Newly discovered archival materials reveal that Wong Kim Ark and his family experienced firsthand, and at times shaped, the fluctuating relationship between immigration, citizenship, and access to civil and political rights. The U.S. government reacted to its loss in Wong’s case at first by refusing to accept the rule of birthright citizenship, and then by creating onerous proof-of-citizenship requirements that obstructed recognition of birthright citizenship for certain ethnic groups. But the Wong family’s story is not only about the use and abuse of government power. Government records reveal that the Wongs, like others in their position, learned how to use the immigration bureaucracy to their own advantage, enabling them to establish a foothold in the United States despite the government’s efforts to bar them from doing so. INTRODUCTION..........................................................................................39 I. AN IMMIGRANT FAMILY’S BACKSTORY ............................................43 Ann Loeb Bronfman Distinguished Professor of Law and Government, American University. I am grateful for the American Council of Learned Societies, which awarded me a fellowship to support the research and writing of this article. I benefitted from helpful feedback on drafts of this article at the 2018 Immigration Law Scholars and Teachers Workshop and from conversations and correspondence with Bethany Berger, Gabriel “Jack” Chin, Garret Epps, Alexandra Lahav, Rachel Rosenbloom, and Lucy Salyer. This article is a modified and expanded version of Chapter 3 in my book YOU ARE NOT AMERICAN: CITIZENSHIP STRIPPING FROM DRED SCOTT TO THE DREAMERS (2021). I also published an essay entitled “Birthright Citizens and Paper Sons” in The American Scholar on January 18, 2021 that draws from some of this material. 38 Yale Journal of Law & the Humanities, Vol. 32, Iss. 1 [], Art. 3 2021] “By Accident of Birth” 39 II. THE ORIGINS OF BIRTHRIGHT CITIZENSHIP IN THE UNITED STATES .48 III. UNITED STATESV. WONG KIM ARK: THE SUPREME COURT BATTLE OVER BIRTHRIGHT CITIZENSHIP ........................................................51 A. A Test Case......................................................................................51 B. Before the U.S. Supreme Court.......................................................54 C. The Supreme Court’s Decision .......................................................60 IV. THE GOVERNMENT’S REFUSAL TO ACCEPT DEFEAT .........................62 V. BIRTHRIGHT CITIZENS AND PAPER SONS ...........................................70 CONCLUSION.............................................................................................75 INTRODUCTION When Wee Lee went into labor with her first child in 1870, she faced the ordeal almost entirely alone. She would be giving birth at her home on the second floor of 751 Sacramento Street, above the grocery store her husband owned with his partners in the heart of San Francisco’s Chinatown.1 San Francisco hospitals would not admit a person of Chinese ethnicity, white doctors were unwilling to visit a Chinese home, and there were not many Chinese midwives or even Chinese women nearby to assist her.2 In 1870, there were fewer than 5,000 Chinese women in the United States, a mere blip in a country of nearly thirty-nine million people. Wee Lee’s child would be an even greater rarity—of the 63,254 ethnic Chinese listed in the 1870 U.S. census, only 518 were native born.3 1. “Interview with Wong Kim Ark on August 31, 1895,” in Wong Kim Ark File 12017/42223, Immigration and Naturalization Service, Record Group 85, Archival Research Catalog Identifier 296477, National Archives and Records Administration at San Francisco—San Bruno. Descriptions of Wong Kim Ark’s travel to and from China and details of his life in China and the United States come from the following two case files held by the National Archives: Wong Kim Ark File 12017/42223, Immigration and Naturalization Service, Record Group 85, Archival Research Catalog Identifier 296477, National Archives and Records Administration at San Francisco—San Bruno; and Wong Kim Ark Case File No. 11198, Admiralty Case Files, 1851-1966, United States District Courts, Northern District of California, San Francisco, Record Group 21, Archival Research Catalog (ARC) Identifier 296013, National Archives and Records Administration at San Francisco—San Bruno. Hereinafter these files collectively will be cited as “Wong Kim Ark File, National Archives.” 2. Joan B. Trauner, The Chinese as Medical Scapegoats in San Francisco, 1870-1905, 57 CAL. HIST. 57, 82-83 (1978). 3. 1 U.S. DEP’T OF THE INTERIOR, Table I: Population of the United States,NINTH CENSUS 3 (1872), https://www2.census.gov/library/publications/decennial/1870/population/1870a-04.pdf?#; Id., Table XXII: Tables of Sex, and Selected Ages, at 609, https://www2.census.gov/library/publications/de cennial/1870/population/1870a-55.pdf. See also Sucheng Chan, The Exclusion of Chinese Women, 1870-1943, in CHINESE IMMIGRANTS AND AMERICAN LAW 2 (Charles McClain ed., 1994); 1 U.S. DEP’T OF THE INTERIOR, Table I: Population of the United States,NINTH CENSUS 8 (1872), https://ww w2.census.gov/library/publications/decennial/1870/population/1870a-04.pdf?#; Id., Table VI: Population of the United States, at 328, https://www2.census.gov/library/publications/decennial/1870/ population/1870a-32.pdf?#. https://digitalcommons.law.yale.edu/yjlh/vol32/iss1/3 2 Frost: "By Accident of Birth": The Battle over Birthright Citizenship Af 40 Yale Journal of Law & the Humanities [Vol. 32:1 When she arrived from China many years earlier, Wee Lee and her husband, Wong Si Ping, had settled in San Francisco’s Chinatown—one of the most densely populated areas of the city in a land the Chinese nicknamed “Gold Mountain.”4 Wong Si Ping joined the hustle and bustle every morning, but Wee Lee would have been a perpetual observer, passing her days watching a slice of this scene from her second-story window on Sacramento Street. Respectable Chinese women did not parade along the streets or mingle with strangers in public spaces. In any case, she couldn’t walk far. As a woman of the merchant class, it is likely the bones of her feet had been crushed and then bound tightly with strips of cloth, so that she was forced to balance her weight on appendages just a few inches in length. Her “lily feet” would have helped Wee Lee prove to immigration inspectors that she was not a slave girl or a prostitute—disfavored groups that would eventually be barred from entering the country. Once she had settled in the United States, however, they only isolated her further.5 But Wee Lee would not be alone for much longer. In the fall of 1870, she safely delivered a baby boy, and she named him Wong Kim Ark.6 Decades later, her son’s birth would be at the center of the Supreme Court case establishing the Fourteenth Amendment’s guarantee of birthright citizenship, raising legal issues that continue to be debated today.7 Almost 150 years later, in the middle of a slow news week, President Donald Trump announced that his administration was “seriously” looking at the possibility of ending birthright citizenship for the children of undocumented immigrants. “[Y]ou walk over the border, have a baby— congratulations, the baby is now a U.S. Citizen ... It’s frankly ridiculous,” Trump told reporters gathered outside the White House on August 21, 2019. His comments echoed those made in October 2018, when he declared he had the power to end the “crazy, lunatic” policy of birthright citizenship unilaterally through an executive order. He reiterated the same arguments in August 2020, when he questioned the citizenship of Vice President Kamala Harris, who was born in the United States to noncitizen parents 4. WENDY ROUSE JORAE, THE CHILDREN OF CHINATOWN: GROWING UP CHINESE AMERICAN IN SAN FRANCISCO, 1850-1920, at 10 (2009). 5. See JUDY YUNG, UNBOUND FEET: A SOCIAL HISTORY OF CHINESE WOMEN IN SAN FRANCISCO 24-25 (1995);HUPING LING, SURVIVING ON THE GOLD MOUNTAIN: A HISTORY OF CHINESE AMERICAN WOMEN AND THEIR LIVES 19 (1998); Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 670, 674-75 (2005). 6. Immigration records give inconsistent dates for Wong Kim Ark’s birth. Some records describe him as being born on October 1, 1870, others as having been born on an unspecified date in 1873. The confusion may be due in part to the differences between the Chinese and Western calendar. I chose to use October 1, 1870, as his birthdate because it was listed as a precise birthdate in some documents, and because it is consistent with the age Wong gave for himself in numerous immigration interviews over many years. 7. This article uses the term “birthright citizenship” to refer to citizenship based on birthplace, also known by the Latin term “jus soli.” Published by Yale Law School Legal Scholarship Repository, 1 Yale Journal of Law & the Humanities, Vol. 32,
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